Massey v Anand2011 NY Slip Op 30490(U)

February 23, 2011Supreme Court, Suffolk County

Docket Number: 05-10671Judge: Joseph C. Pastoressa

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SHORT FORM ORDER INDEX No.CAL. No.

05-1067110-00974MM

PRESENT:

SUPREME COURT - STATE OF NEW YORKLA.S. PART 34 - SUFFOLK COUNTY

Hon. JOSEPH C. PASTORESSASupreme Court

Mot. Seq. # 010 - MD#012-XMD

#011 - XMD#013 -XMD

---------------------------------------------------------------XDAMON MASSEY, as Administrator of theEstate ofL YNDA MASSEY, Deceased, andDAMON MASSEY, Individually,

Plaintiff,- against-

SATISH ANAND, M.D., BABU THALLUR, M.D., :JEFFREY SAUDERER, M.D., PHYLLIS SCHER, :M.D., ROSEMARY KYRIACOU, P.A.,QUEENS-LONG ISLAND MEDICAL GROUP,P.c., JEDAN PHILLIPS, M.D., FREDERICKMILLER, M.D., ELISABETH DANEELS, M.D.,KHALID M. AHMAD, M.D., RICHARD KALISH, :M.D., ZAHID HUSSAIN, M.D., PETERGOLDSTEIN, M.D.,

Defendants.---------------------------------------------------------------X

SILBERSTEIN, AWAD & MIKLOS, P.C.Attorney for Plaintiff600 Old Country RoadGarden City, New York 11530

FUREY, FUREY, LEVERAGE, MANZIONE, et al.Attorney for Defendants Anand & Thallur600 Front StreetHempstead, New York 11550

KRAL, CLERKIN, REDMOND, RYAN, et al.Attorney for Defendants Sauderer & Scher69 East Jericho TurnpikeMineola, New York 11501

FUMUSO, KELLY, DeVERNA, SNYDER, et al.Attorney for Defendant Kyriacou110 Marcus BoulevardHauppauge, New York 11788

Upon the following papers numbered 1 to ~ read on this motion and cross motions for summary judgment; Notice ofMotion/ Order to Show Cause and supporting papers (01) 1 - 8 ; Notice of Cross Motion and supporting papers (all) 9-26; (012) 27-43; (013) 44-47 ; Answering Affidavits and supporting papers 48-54; 55-63; 64-65 ; Replying Affidavits and supporting papers66-73; 74-76; 77-78 ;Other 79-80 ; (and aitel heal ing eotlllsel ill support and opposed to the ntotiOIYit is

ORDERED that this motion (010) by the defendant, Queens-Long Island Medical Group, PC" for anorder pursuant to CPLR 3212 granting summary judgment dismissing plaintiffs complaint based upon thesubsequent, intervening and supervening acts of other medical providers; dismissing any claims of vicariousliability asserted against it based upon the acts or omissions of the co-defendants Satish Anand, M.D. and BabuThallur, M.D.; and further dismissing any claims stemming from treatment and events occurring after June 12,2003, the last date that the plaintiffs decedent was treated at Queens Long Island Medical Group, is denied; andit is further

ORDERED that this cross motion (011) by the defendant, Rosemary Kyriacou, P.A., for an orderpursuant to CPLR 3212 granting summary judgment dismissing the plaintiffs complaint and all cross claimsasserted against her is denied; and it is further

ORDERED that this cross motion (012) by the defendants, Khalid Ahmed, M.D., and Zahid Hussain,M.D., for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiffs complaint and

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all cross claims asserted against them is denied; and it is further

ORDERED that this cross motion (013) by the plaintiff, Damon Massey, as administrator of the estateof Lynda Massey, deceased, and individually, for an order pursuant to CPLR Article 16 precluding any of thedefendants remaining after determination of the preceding motions from claiming the limited liability benefits ofArticle 16 as to any defendant who is granted summary judgment has been rendered academic by denial ofmotions (010), (011), and (012) and is denied; and it is further

ORDERED that the plaintiff is directed to serve a copy of this order with notice of entry upon all partiesand upon the Clerk of the Calendar Department, Supreme Court, Riverhead within thirty days of the date of thisorder, and the Clerk is directed to set this matter down for a hearing, on notice to all parties of the date, placeand time for a determination with regard to sanctions or referral to the Grievance Committee.

The complaint of this action arises out of the defendants' alleged departures from good and acceptedstandards of medical care and treatment of the plaintiffs decedent in the defendants' alleged failure to timelyand properly diagnose and treat the plaintiff. Causes of action sounding in medical malpractice for the wrongfuldeath and conscious pain and suffering of the plaintiffs decedent who died on August 5, 2003 have beenasserted.

It is claimed that the defendants failed to timely diagnose and properly treat the plaintiffs decedent for,inter alia, pemphigus vulgaris causing the condition to worsen and ultimately result in her death. The plaintiffclaims that the decedent began treating at the Queens-Long Island Medical Group, PC in 2001 through and untilher admission to Stony Brook University Hospital, where she died on August 5, 2003 at 51 years of age.

The proponent of a summary judgment motion must make a prima facie showing of entitlement tojudgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.To grant summary judgment it must clearly appear that no material and triable issue of fact is presented(Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The movant has the initial burden ofproving entitlement to summary judgment (Winegrad v N. Y.V. Medical Center, 64 NY2d 851 [1985]; Alvarezv Prospect Hosp., 68 NY2d 320 [1986]). Failure to make such a showing requires denial of the motion,regardless of the sufficiency of the opposing papers (Winegrad v N.Y.v. Medical Center, supra). Once suchproof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion forsummary judgment, must proffer evidence in admiSSIble form ...and must "show facts sufficient to require a trialof any issue of fact" (CPLR 3212[b]; Zuckerman v City o/New York, 49 NY2d 557 [1980]). The opposingparty must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof inadmissible form (Joseph P. Day Realty Corp. v Aeroxon Prods., 148 AD2d 499 [2nd Dept 1979]) and mustassemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are realand capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014 [2nd Dept 1981]). Summaryjudgment shall only be granted when there are no issues of material fact and the evidence requires the court todirect a judgment in favor of the movant as a matter of law (Friends 0/Animals v Associated Fur Mfrs., 46NY2d 1065 [1979]).

The requisite elements of proof in a medical malpractice action are (l) a deviation or departure fromaccepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holton vSprain Brook Manor Nursing Home, 253 AD2d 852[1998], app denied 92 NY2d 818 [1999]). To prove aprima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantialfactor in producing the alleged injury (see Derdiarian v Felix Contracting Corp., 51 NY2d 308 [1980]; Prete v

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Rajla-Demetrious, 221 AD2d 674 [1996]). Except as to matters within the ordinary experience and knowledgeof laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards ofmedical care and that such departure was a proximate cause of the plaintiff s injury (see Fiore v Galang, 64NY2d 999 [1985]; Lyons v McCauley, 252 AD2d 516, app denied 92 NY2d 814 [1998]; Bloom v City of NewYork, 202 AD2d 465 [1994]).

To rebut a prima facie showing of entitlement to an order granting summary judgment by defendants,plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of meritattesting to a deviation or departure from accepted practice, and containing an opinion that the defendants' actsor omissions were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth Israel Med.Ctr-Kings Highway Div., 7 AD3d 759, 776 NYS2d 907 [2ndDept 2004]; Domaradzki v Glen Cove OB/GYNAssocs., 242 AD2d 282,660 NYS2d 739 [2ndDept 1997]). As set forth inFeinberg v Feit, 23 AD3d 517,806NYS2d 661 (2ndDept 2005), "[s]ummary judgment is not appropriate in a medical malpractice action where theparties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by ajury."

The plaintiff has submitted expert affirmations in opposition to these motions for summary judgment forthis courts in camera review.l

MOTION (010)In motion (010), the defendant Queens-Long Island Medical Group, P.c. (QLIMG) seeks summary

judgment dismissing the complaint based upon the subsequent, intervening and supervening acts of othermedical providers; dismissing any claims of vicarious liability asserted against it based upon the acts oromissions of the co-defendants Satish Anand, M.D., and Babu Thallur, M.D.; and dismissing any claimsstemming from treatment and events occurring after June 12,2003, the last date that the plaintiffs decedent wastreated at Queens Long Island Medical Group. In support of this motion, the moving defendant QLIMG hassubmitted an attorney's affirmation; the summons and complaint; the moving defendant's answer; the plaintiffsverified bill of particulars and response to expert demand; and the affirmation of Jerome Lehrfeld, M.D.

The affidavit of Jerome Lehrfeld, M.D. has been submitted in support of this motion wherein he affirmsthat he is a physician currently licensed to practice medicine in the State of New York and that his practice islimited to primary care and family medicine. He does not affirm that he is board certified in any area ofmedicine. Dr. Lehrfeld has set forth the deposition transcripts and medical records which he reviewed and uponwhich he bases his opinions in this matter. He refers to those deposition transcripts and medical records in hisaffirmation, but those transcripts and records have not been provided to this court with the moving papers insupport of his opinions (see Alvarez v Prospect Hosp., supra). Even if the moving papers were properlysupported with the required submissions, it is determined that the opinions set forth by Dr. Lehrfeld in hisaffirmation are conclusory and unsupported by evidentiary submissions and raise factual issues. Additionally,further factual issues are raised by plaintiffs expert physician, thus precluding summary judgment.

Dr. Lehrfeld opines with a reasonable degree of medical certainty that there is no evidence in this case ofany departure from accepted standards of good medical care or practice on the part of Satish Anand, M.D. orBabu Thallur, M.D., and there is nothing that these defendants did or did not do that was a substantial factor incausing the alleged injuries to the plaintiffs decedent.

IThe Court has conducted an in-camera inspection of the original unredacted affirmation and finds it to beidentical in every way to the redacted affirmation in plaintiff s opposition papers with the exception of the redactedexpert's name. In addition, the Court has returned the unredacted affirmation to plaintiffs attorney.

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Dr. Lehrfeld states that the decedent, Linda Massey, presented to Queens Long Island Medical Group inJanuary 2002 with a history of diabetes mellitus, hypertension, migraine headache, trigeminal neuralgia andvarious chronic orthopedic conditions including back pain and shoulder pain. He refers to various dates ofservice, which he states "are or may be significant"; however, this court is unable to refer to those records due tothe failure to submit the same. Dr. Lehrfeld sets forth in a conclusory manner that on various dates of treatment(January 28, 2002, March 28, 2002, and April 2, 2002) Dr. Anand saw Ms. Massey and examined her mouth andthat such examination was normal. However, the method and manner of examination has not been set forth, norhas the standard of care for examination been set forth.

On April 12,2002, when the plaintiff's decedent was seen by an ENT specialist, Dr. Zauderer, multiplemouth sores were visualized and evaluated as typical for viral ulcers along with an irritated soft palate. She wasreferred by Dr. Zauderer to Dr. Fantasia, an oral pathologist at Long Island Jewish Hospital. On April 29, 2002,when Dr. Anand saw the plaintiff's decedent for post-nasal drip and seasonal allergies, she made no complaintsof ulcers in her mouth although he was aware of the same. On May 2, 2002, Dr. Anand did not examine theplaintiff's decedent's mouth as she presented for evaluation and treatment of trigeminal neuralgia andpreoperative evaluation. On May 11,2002, plaintiff's decedent was seen at QLIMG by Dr. Gaswany who treatedher for flank pain and noted a normal examination of the head, eyes, ears, nose and throat. Dr. Anand saw her onMay 16, 2002 and did not document any discussion about mouth lesions; however, on May 17, 2002, Dr. Kelschnoted the presence of oral lesions when seen at Dr. Fantasia's office. These oral lesions were treated withtopical steroids. Thereafter, there were several visits with Dr. Anand on May 31, 2002, July 22, 2002, September13,2002 at which time he did not document mouth lesions. On September 27,2002, Ms. Massey was seen byDr. Anand complaining of continuing right facial pain and puffiness along the mandible. She was referred backto the neurologist. Dr. Anand noted a normal examination of her head, eyes, ears, nose and throat, which Dr.Lehrfeld states would indicate that he examined her mouth.

On October 21, 2002, Dr. Lehrfeld states that Ms. Massey was diagnosed with a small brain aneurysm forwhich no surgery was contemplated and that Dr. Anand did not recall ifhe examined her mouth. On November1, 2002, Ms. Massey was seen by Rosemary Kyriacou, P.A., for complaints of an ulcer in her mouth for whichshe was referred to Dr. Scher, an ENT specialist, who, on November 6,2002, found two areas of ulceration inher mouth, areas described as missing mucosa with a white center for which Dr. Scher did a scrape biopsy. Dr.Lehrfeld states with regard to the biopsy report, "Other than the mistaken identification of the biopsy as analmucosa, the results are indicative of inflammation of the stratified squamous epithelium." He states that thisbiopsy did not diagnose pemphigus vulgaris because of inadequate depth biopsy and it is likely that the conditionwas not yet present.

On November 15, 2002, Dr. Anand did not see lesions when he examined the decedent's mouth. At thetime she was complaining of burning and paresthesia on the right side of her mouth and tongue and pain on theright side of her head and neck. Thereafter, until May 22, 2003, Dr. Anand did not see any lesions in her mouth,but on that date saw an ulcer at the base of her tongue for which he made a diagnosis of an aphthous ulcer whichhe felt was due to a virus infection or her dentures. He treated her with local steroids and orabase but did nottake a biopsy as he does not perform biopsies. On May 30, 2003, when Ms. Massey was seen by Dr. Thallur onan urgent visit, she complained of mouth and throat pain and a headache, had swelling of her lip, gums and innercheek, had missing teeth, and had an ulcer at the base of her tongue for which he treated her with an antibioticand referred her to a dentist. He did not see any physical signs such as blisters or bullae compatible withpemphigus vulgaris. On June 2, 2003, she was seen by Dr. Anand for a "sore" on her lower lip diagnosed as aherpes, which he treated with Zovirax cream locally. He considered the presence of an aphthous ulcer in hermouth compatible with a cold sore on the lip because both could be caused by a virus. On June 6, 2003, Dr.

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Anand found more ulcers on her right inner cheek and at the base of her tongue, which he treated with Zoviraxpills for a virus. On June 12,2003, Dr. Anand saw white patches on her tongue and buccal mucosa anddiagnosed her with candidiasis (thrush) and prescribed Mycostatin. He set up an ENT appointment for thefollowing week. Thereafter, neither Dr. Anand nor Dr. Thallur saw Ms. Massey, as she was hospitalized at StonyBrook University Hospital from June 14, 2003 through June 28, 2003 with an admitting diagnosis ofdisseminated herpes simplex infection. Although the Stony Brook records have not been provided, Dr. Lehrfeldsets forth that the lesions were biopsied on June 25, 2003 indicating pemphigus vulgaris should be considered.However, she was discharged on June 28, 2003 before the physicians were apprised of the biopsy results. Due toworsening of her condition, she was readmitted to Stony Brook on July 10,2003, at which time the diagnosis ofpemphigus vulgaris was confirmed.

Dr. Lehrfeld states that it was not a departure not to refer Ms. Massey to a dermatologist as she had noskin lesions or a dermatological condition. He states pemphigus vulgaris oral lesions can, and do, precede theonset of skin lesions of the disease and they do not ordinarily regress spontaneously as they did in Ms. Massey.He opines that family practice physicians do not perform full thickness biopsies and QLIMG was not equipped toperform such biopsy, but the decedent was under the care of other physicians who were capable of performingsuch procedure. He states the most common cause of a mouth ulcer is either trauma, viral or aphthous ulcers.He further states that the absolute rarity of the disease makes it unlikely to be seen and that all physicians caringfor this patient failed to consider pemphigus vulgaris as a differential diagnosis. He does not opine, however,whether the failure to include pemphigus vulgaris as a differential diagnosis was a departure from good andaccepted standards of medical care and treatment, thus raising a factual issue to further preclude summaryjudgment on behalf of the defendants Dr. Anand and Dr. Thallur.

Plaintiffs expert, a physician duly licensed to practice medicine in New York State who is board certifiedin dermatology and has personally diagnosed and treated patients suffering from pemghigus vulgaris statesfamiliarity with the accepted medical standards and practices in the diagnosis and treatment of the disease andindicators for referral to dermatology and other pathology specialists. The plaintiff s expert bases the opinionsset forth in the affirmation upon a reasonable degree of medical certainty. It is the plaintiffs expert's opinionthat the defendants Dr. Anand and Dr. Thallur are physicians responsible for making necessary referrals tospecialists including dermatologists for specialized care to be provided to decedent from January 2002 throughJune 12,2003. Plaintiffs expert sets forth that in 2002 and 2003 that pemphigus vulgaris was known to be ablistering disease which usually starts in the oral mucosa with blisters or bullae that rupture easily and leave opensores, but intact blisters/bullae in the mouth are rare. Other symptoms include the presence of immunoglobulinantibodies IgG 1 and IgG4. The disease is typically effectively treated with high-dose oral prednisone incombination with immunosuppressants, inter alia, and successful management requires involvement of both thetreating dermatologist and the patient's primary care provider at the earliest possible opportunity to achieve thebest prognosis.

It is the plaintiffs expert's opinion that Dr. Anand and Dr. Thallus departed from accepted standards ofcare in failing to form a timely and correct diagnosis depriving the decedent of an opportunity for meaningfulintervention, a significant factor in hastening the death of the decedent and contributing to her severe pain andsuffering. The decedent first exhibited signs of pemphigus vulgar fifteen months prior to her death frompemphigus and thirteen months before her first hospitalization. The decedent presented to QLIMG betweenApril 2002 and June 2003 about 25 times for various complaints including multiple presentations with ongoingcomplaints of mouth sores and ulcers. The plaintiff s expert states the moving defendants should haveappreciated the need for the decedent to be seen by a dermatologist, dentist or oral pathologist for an incisionalperilesional biopsy following her visits in April, May and November 2002 and May and June 2003.

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Significantly, on the November 15,2002 office visit when the decedent presented with paresthesia in the oralcavity, Dr. Anand should have noted the significance of this complaint and undertaken further investigation andthus departed from accepted standards of medical care by failing to further investigate. On the May 30, 2003visit when the decedent presented to Dr. Thallur with complaints of an ulcer under her tongue and swelling of thelip/inner cheek and lips, although aware of her history, he simply ordered Tequin useful for treating a micro-organism, however, an incisional perilesional biopsy was indicated. Failure to formulate a proper differentialdiagnosis was a departure from the standard of care. Had Dr. Thallur referred the decedent to an oral pathologistfor an incisional biopsy on this visit, and Dr. Anand considered the other conditions to formulate a properdifferential diagnosis, then to a reasonable degree of medical certainty, the decedent's condition would have beendiagnosed at an earlier date when she would have had a significantly better outcome.

It is the plaintiffs expert's opinion that prompt diagnosis is critical for the sake of early intervention andto allow the opportunity of alternate treatment should complications arise from standard therapy with the usualcombination of steroids and immunosuppressants. Other therapies, such as plasmapheresis or intravenousimmunoglobulin (IVlg) could then have been implemented. Absent a prompt diagnosis, if change in treatmentbecomes necessary, it may not be made early enough for the patient to receive full benefit of treatment. A delayin diagnosis of even a few weeks will have a significant impact on the possibility for successful treatment ofpatient with pemphigus vulgaris. Such delay will significantly worsen the prognosis. Plaintiffs expert opineswith a reasonable degree of medical certainty that with proper testing the decedent's condition could have beendiagnosed as early as April 12,2002; had decedent been afforded the benefit of timely diagnosis on April 12,2002 or any time prior to leaving the defendant's care on June 12,2003, decedent would have had the propertreatment available to her thus providing her with a significantly better outcome; and the failure of Dr. Anandand Dr. Thallur to provide decedent with a timely and correct diagnosis was a substantial factor in denying herproper treatment thus contributing to her pain, suffering and untimely death. He states that the movingdefendants' expert Lehrfeld does not consider the rarity of intact blisters or bullous lesions in the oral cavity andfails to account for these symptoms. The theory of later negligence by subsequent treaters relieves these movingdefendants of liability as later negligence was not foreseeable and subsequent treaters could have intervened toreverse the decline of decedent's condition must be discredited as a delay in diagnosis of even a few weeks willhave a significant impact on the success of subsequent treatment and will significantly worsen the prognosis.These departures, the expert opines, were substantial factors in causing the decedent's injuries, conscious painand suffering and untimely death.

The plaintiff has also submitted the affirmation of an expert who is duly licensed to practice medicine inthe State of New York who is board certified in internal medicine and as a medical examiner and statesfamiliarity with the accepted standards and practices applicable to the staff at QLIMG and Dr. Anand and Dr.Thallur as Ms. Massey's internists in charge of managing, monitoring and coordinating Ms. Massey's overallhealth care from January 2002 until her admission to Stony Brook. The plaintiffs expert opines to a reasonabledegree of medical certainty that the defendants Dr. Anand and Dr. Thallur departed from the accepted standardsof medical care and practice in their care and treatment of the decedent, and that those departures weresubstantial factors in causing the decedent's injuries, conscious pain and suffering and untimely death on August5,2003. Plaintiffs expert opines that the defendants did not take into account that patients who suffer recurringulcerative lesions in the oral cavity require tissue diagnosis by biopsy; that clinical examination is not enough;and that referral to a specialist is required for the biopsy of the oral cavity lesions. The failure to timely refer Ms.Massey for oral cavity biopsy, failure to prescribe steroids with immunosuppressants, discontinuity in the groupin terms of obtaining consultation and procedure and reports, failure to act upon available consultationinformation, and poor communication between practitioners are each a substantial factor that caused the death ofMs. Massey.

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The plaintiffs expert states that Dr. Anand testified he had access to his patient's charts and could makereferrals to physicians outside the group, and had access to the notes of his colleague Dr. Zauderer fromdecedent's office visits on April 12,2002 and April 26, 2002 describing the decedent's multiple mouth ulcersand complaints of bleeding sores that prevented her from working, and access to Dr. Zauderer's plan to refer thedecedent to an oral pathologist on April 26, 2002, as well as to refill Nystatin used to treat candidiasis. Dr.Anand had the duty to be aware of that care and medical condition and to appreciate the significance of the notesof the other treating physicians and the need for further testing; however, he testified that he was not aware Ms.Massey saw an oral pathologist. Dr. Anand was required to make a differential diagnosis for the recurringcondition; test and eliminate, beginning with the most serious condition; and to refer her to proper-credentialedspecialists. Dr. Anand's failure to refer Ms. Massey to a dentist or oral pathologist for an incisional biopsy was adeparture from accepted standards of care as the biopsy would have given the decedent the benefit of earlytreatment and a favorable prognosis. Dr. Anand was aware that the scrape biopsy conducted by Dr. Scher onNovember 6,2002 would distort the superficial epithelial layer and render it unsuitable for analysis and thatperilesional biopsy would have preserved the epithelial layer making it suitable for analysis and testing. Againon May 23,2003, when Ms. Massey presented with an ulcer at the base of her tongue, accepted standards of careagain required an incisional perilesional biopsy to search for various types of ulcerative lesions relative to therecurring ulcer, but no referral for the same was made. This need was amplified on June 2 and June 6, 2003when she presented with white patches on her tongue and buccal mucosa, but instead Dr. Anand based hisassessments on clinical impressions which cannot be the basis for a definitive diagnosis. Incisional perilesionalbiopsy would have indicated the need for further testing by the pathologist including immunofluoresence studiesto detect the presence of special autoantibodies that are found in the epithelial and epidermal intercellularsubstance. Once diagnosed, it is essential to treat pemphigus vulgaris with adrenocortical steroid medicationsand an immunosuppressant to enhance the therapeutic effect. The expert opines that these departures were eacha significant factor in causing the decedent pain, suffering and untimely death.

The plaintiffs expert further opines that Dr. Thallur had the duty to appreciate the significance of thenotes of the prior treating physicians in the group; the history and status of Ms. Massey's medical condition andcare; the ongoing complaint of mouth ulcers, bleeding sores, and sore throat; and the need to make an urgentreferral for an incisional perilesional biopsy in April 2002 and again in May 2003 when she presented with anulcer under her tongue, swelling of her lip/inner cheek and lips, and failed to do so. Simply instructing a patientto see a specialist without a specific referral to a particular physician or dentist for a particular test was adeparture from accepted standards of care and a cause of delay in diagnosing and treating Ms. Massey'scondition. These failures, in addition to the failures to make a differential diagnosis and properly diagnose thedecedent's condition, and to order proper treatment and medication were departures from the standard of medicalcare and substantial factors in causing Ms. Massey to lose an opportunity for cure, and to experience pain,suffering and untimely death.

Based upon the foregoing, there are multiple factual issues which preclude summary judgment even if thedefendants would have supported the motion with proper evidentiary submissions and established prima facieentitlement to summary judgment dismissing the complaint.

Accordingly, motion (010) by the defendants Dr. Anand and Dr. Thallur is denied.

MOTION (011)

Counsel for the moving defendant has submitted an affirmation in reply to the cross motion by the co-defendant Rosemary Kyriacou, P.A., wherein she requests that should the court determine that Rosemary

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Kyriacou, P.A., is entitled to summary judgment based on the affirmation of Dr. Perieira, that QLIMG be grantedpartial summary judgment for any claims of vicarious liability with respect to Kyriacou. However, CPLR 3212does not permit a party to incorporate by reference the evidentiary submissions of another party into their movingpapers. Further, QLIMG has not submitted an expert affirmation or affidavit in support of this un-noticedapplication set forth in a reply and there is no evidentiary submission by the moving defendant averring towhether or not Kyriacou was an employee, agent or representative of QLIMG.

In motion (011), Rosemary Kyriacou, P.A.. seeks summary judgment dismissing the complaint assertedagainst her. In support ofthis application, she has submitted, inter alia, an attorney's affirmation; the summonsand complaint; the answer and demands served by Kyriacou; the plaintiffs verified bill of particulars; themedical records ofQLIMG; an affirmation of Frederick Pereira, M.D.; a letter from Dr. Kelsch to Dr. Zaudererdated May 17,2002 with no-show record; a biopsy report dated November 12,2002 of Dr. Joan M. Mones, D.O;Stony Brook University Hospital records dated June 14, 2003 and July 10, 2003; an unsworn curriculum vitae ofRosemary Kyriacou; an affidavit of Rosemary Kyriacou dated September 25,2006; and an unsigned copy of thetranscript ofthe examination before trial of Damon Massey dated January 26, 2006. The unsigned transcript ofthe examination before trial is not in admissible form pursuant to CPLR 3212 nor is it accompanied by anaffidavit pursuant to CPLR 3116 and is therefore not considered in this motion (see Martinez v 123-16 LibertyAve. Realty Corp., 47 AD3d 901,850 NYS2d 201 [2nd Dept 2008]; McDonald v Maus, 38 AD3d 727,832NYS2d 291 [2nd Dept 2007]; Pina v Flik Inti. Corp., 25 AD3d 772,808 NYS2d 752 [2nd Dept 2006]). Thecurriculum vitae of Rosemary Kyriacou is not sworn to and is not in admissible form and is not considered in thismotion.

In her affidavit dated September 25, 2006, Rosemary Kyriacou states she has no independent recollectionof Lynda Massey or anyone regarding her. Her supervising physician at QLIMG was Stephan Simons and shedoes not recall speaking with him about Lynda Massey.

Frederick Pereira, M.D., sets forth in his affirmation that he is a physician duly licensed to practicemedicine in the State of New York and is board certified in dermatology. He does not set forth that he has anyexperience in treating pemphigus vulgaris. He states that he has reviewed the bill of particulars, the relevantmedical records (but does not set forth which medical records were reviewed) and the deposition testimony of theplaintiff. It is his opinion with a reasonable degree of medical certainty that Rosemary Kyriacou, P.A.. actedappropriately and did not depart from accepted standards of medical practice as a physician's assistant. It has notbeen established by any admissible evidence, however, that Rosemary Kyriacou was a physician's assistant, bywhom she was employed, and what the standard for practice for a physician's assistant as no transcript of theexamination before trial of Ms. Kyriacou has been submitted and her affidavit does not provide such information.

Dr. Pereira sets forth that prior to 2003 Ms. Massey did not suffer from any major skin conditions, butthat she had hypertension, diabetes, low back syndrome, trigeminal neuralagia and recurrent UR! andpharyngotonsillitis. The note of April 12, 2002 in the QLIMG record, he states, indicates Ms. Massey had soresin her mouth with bleeding, ulcers on the soft palate, probably viral ulcers, and antibiotics. A solution ofBenadryllDecadron/Mycostatin was ordered. Dr. Zauderer's note on April 26, 2002 noted multiple ulcers overthe oropharangeal mucosa. In a letter dated May 17,2002, Dr. Kelsch of the Oral Pathology Unit at the LongIsland Jewish Medical Center (LIJMC) gave a diagnosis of thermal burn of the right soft palate and traumaticulcer of the right lateral tongue. A refill was given on May 31, 2002 for Mycostatin used to treat oral fungalinfections. On November 1, 2002, Rosemary Kyriacou examined Ms. Massey and found one "sore" on the rightside of her mouth. The impression was that of viral syndrome, aphthous ulcer right buccal mucosa, pharyngitis,r/o strep, aphthous stomatitis. A throat culture was taken and she was prescribed Kenalog and Orabase gel

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mouth rinse twice daily and Biaxin twice a day. Thereafter, Dr. Pereira sketched out the remainder of the visitsand Ms. Massey's admissions to Stony Brook University Hospital.

In conclusion, he states that Ms. Kyriacou had the appropriate training and expertise to practice as aphysician's assistant at the group. He states she appropriately evaluated and treated the plaintiffs decedent andprescribed appropriate medication for aphthous ulcer and viral syndrome and took a culture to rule out strep andadvised her to return if she did not feel better. He sets forth the care and treatment for aphthous ulcer, but doesnot indicate that she made a differential diagnosis to rule in or out pemphigus vulgaris or that she ordered anyother tests to confirm or rule out the same except for a throat culture. He does not indicate that she reviewed theprevious and pertinent medical history.

Based upon the foregoing, it is determined that Rosemary Kyriacou, P.A., has not established prima facieentitlement to summary judgment dismissing the complaint.

Accordingly, motion (011) is denied.

MOTION (012)In motion (012), the defendants Khalid Ahmed, M.D., and Zahid Hussain, M.D. seek summary judgment

dismissing the plaintiff s complaint and all cross claims asserted against them on the basis that they were medicaltrainees acting under the supervision and direction of attending physicians. However, the moving defendantshave not submitted copies of the answers with cross-claims which they seek to have dismissed and as required byCPLR 3212. The transcripts of the defendants' examinations before trial are not signed and are therefore not inadmissible form pursuant to CPLR 3212 (see Martinez v 123-16 Liberty Ave. Realty Corp., supra; McDonald vMaus, supra; Pina v Flik Intl. Corp., supra). Additionally, the Note ofIssue in this action was filed on May 12,2010 and the last day in which to serve this cross motion was September 9, 2010. CPLR 3212(a) provides inpertinent part that a motion for summary judgment shall be made no later than one hundred twenty days after thefiling of the Note of Issue, except with leave of court on good cause shown. This cross motion was served onSeptember 20,2010, beyond the statutory 120 days, and the moving defendants have made no application forleave of court on good cause shown to file this cross-motion beyond the statutory period, and in fact, have notsubmitted any reason for the delay (see Brill v City of New York, 2 NY3d 648 [2004]; Gonzales v 98MagLeasing Corp., 95 NY2d 124 [2000]). Based upon the foregoing, it is determined that cross motion (012) fails tocomport with the requirements ofCPLR 3212 and is deemed untimely.

It is further determined that even if motion (012) were deemed timely and comported with CPLR 3212,there are factual issues which preclude summary judgment. The plaintiffs expert has raised factual issuesconcerning Dr. Hussain's failure to familiarize himself with the patient's Pathology Laboratory for the skinbiopsy report prior to writing the discharge summary, which failure caused serious delay in properly treating theplaintiff s decedent.

Accordingly, motion (012) is denied.

By letter dated November 16,2010, counsel for the plaintiff has apprised this court that unredacted copiesof the plaintiffs expert affirmations were sent to the Court for in camera inspection and that a secretary in hisoffice inadvertently circulated the same to all defense firms. The letter accompanying these affirmations set forththat the unredacted affirmations were confidential and to be used for the Court's purposes. Counsel for theplaintiff contends that defense counsels never notified his office that the documents were sent to them in error,and that counsel for the plaintiff was not aware of the error until it received the defendants' replies wherein the

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counsel for the defendants, particularly Alisa Lebensohn, Esq. from the Attorney General's Office, appearing onbehalf of the defendants Khalid Ahmed, M.D., and Zahid Hussain, M.D., went so far as to rely on extensive"research" based upon this confidential document. Counsel for the plaintiff sets forth that this use of confidentialinformation by defense counsel Lebenshon contravenes basic professional responsibility, which requires thatupon receipt of the confidential information a lawyer is prohibited from using that information (ABA FormalOpinion 05-437, and NYC Eth. Op. 2003-04, 2003 WL 23789274).

Counsel for the plaintiff has demonstrated that part of the document exchanged inadvertently in opposingthe defendants' motions is protected from disclosure pursuant to CPLR 310 1(d) in that the plaintiff, in opposinga motion for summary judgment in an action for medical malpractice, does not disclose the name and pertinentinformation identifying the plaintiff s expert. Counsel for the plaintiff has demonstrated that there was no waiverof the communicated protected material, that reasonable steps were taken immediately to notify the defendants ofthe inadvertent disclosure, and that Alisa R. Lebensohn, Esq., Assistant Attorney General and counsel for thedefendants Dr. Zahid Hussain and Dr. Khalid Ahmed, used that information to research the plaintiff s expert andmade arguments in her reply affirmation based upon the fruits of her research. Lebenshon demonstrated by theinformation and arguments contained in her affirmation submitted in her reply that instead of notifying theplaintiffs counsel of the inadvertent disclosure of the identity of the plaintiffs expert Dr. Schwartz and furtherrefraining from reviewing or utilizing that protected information about the plaintiff s expert, she wilfullyconducted research about the plaintiffs expert and submitted arguments and legal reference (see, Hussain-Ahmad Reply by Lebensohn at paras. 27-31) adverse to Dr. Schwartz in contravention of the Rules ofProfessional Conduct 4.4. (see New York Times Newspaper Div. of N. Y. Times Co. v Lehrer McGovern Bovis,300 AD2d 169 [1st Dept 2002]).

The New York Rules of Professional Conduct, subsection (b) to Rule 4.4 (b, entitled "Respect for Rightsof Third Persons," directs that "[a] lawyer who receives a document relating to the representation of the lawyer'sclient and knows or reasonably should know that the document was inadvertently sent shall promptly notify thesender. " This court further notes that both the Association of the Bar of the City of New York, in an opinion ofits Committee on Professional and Judicial Ethics, opinion number 2003-04,2004 WL837937, and the NewYork County Lawyers Association, in an opinion of its Committee on Professional Ethics, opinion number 730,2992 WL 31962702, have considered the issue of inadvertent disclosure. Both conclude that when receiving acommunication or an e-mail which the lawyer knows or should reasonably know contains privileged material, theattorney is obligated to "promptly notify the sending attorney" thereof, to refrain from further review of thecommunication, and to return or destroy it as requested. Counsel should be aware of their obligations in thesecircumstances, and promptly adhere to them in order to avoid sanctions (see Galison v Greenberg, 5 Misc3d1025A [Sup Ct, NY County 2004]; People v Terry, 1 Misc3d 475 [Monroe County Court 2003]). As set forth in57 Syracuse L. Rev. 1309, the Committee on Professional Ethics based its opinion on the New York EthicalCode's support for an "ethical infrastructure." For example, the New York Code requires that a law firm "makereasonable efforts" to ensure that its lawyers are complying with the Code. The Code also requires that firmssupervise lawyers within the firm, and apportion responsibilities between subordinate and supervisory lawyerswithin a firm. 22 NYCRR 130-1.1 permits the Court to exercise its discretion to impose costs and sanctions onan errant party. Sanctions are retributive, in that they punish past conduct (Federal Home Loan Mortgage Corp.v Raia, 2010 Misc Lexis 5704 [Nassau County Dist Ct 2010]).

The Advisory Committee on Judicial Ethics has rendered opinion 10-85 dated June 10, 2010. The issueaddressed is whether the Judge must report an attorney to the appropriate disciplinary authority when in thecourse of a proceeding, an attorney admitted to the judge that he/she improperly notarized his/her client'ssignature, purportedly as a matter of convenience. There was no evidence that the attorney committed this

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impropriety for any other reason nor on any other occasion. The opinion cited to 22 NYCRR 100.2 [A], whereinit is set forth that ajudge must always act to promote public confidence in the judiciary's integrity andimpartiality. Thus, if a judge received information indicating a substantial likelihood that a lawyer hascommitted a substantial violation of the Rules of Professional Conduct (see 22 NYCRR Part 1200), he or shemust take appropriate action (see 22 NYCRR 100.3 [D)[2)). The Committee further opined that the decision asto whether a substantial likelihood exists that an attorney committed a substantial violation of the Rules ofProfessional Conduct rests with the judge because he or she is in the best position to evaluate and assess allrelevant, known circumstances (see Opinions 08-198; 07-129). Only in relatively few instances has theCommittee advised that ajudge must report a lawyer's misconduct to a disciplinary authority. In those instances,based on the facts disclosed by the respective inquiring judges, the substantial misconduct rose to such anegregious level that the conduct implicated the attorneys' honesty, trustworthiness or fitness as a lawyer (see e.g.Opinion 07-129 where attorney admitted under oath to committing perjury). The opinion also set forth that "ifthe misconduct is not so egregious as to implicate the lawyer's honesty, trustworthiness, or fitness to practicelaw, the judge need not necessarily report the lawyer to the appropriate disciplinary authority. Rather, the judgehas the discretion to take less severe, appropriate measures instead or in addition, including, but not limited to,counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and/or sanctioning a lawyer (cf.Opinion 91-36 [Vol VII)). Based on all the surrounding circumstances, the judge must determine whether theattorney's conduct rises to the level of egregious misconduct. Ultimately, the judge must exercise his or herdiscretion to determine the appropriate action to take (see, Opinion 08-198; cf. Opinions 08-08; 91-36 [Vol.VII)).

Based upon the foregoing, the court will conduct a conference with all counsel on this issue and ifnecessary schedule a hearing to determine what remedies, if any, are appropriate, and whether, inter alia,sanctions or disqualification against attorney Alisa R. Lebensohn, Esq. are appropriate in this matter, or whetherthe matter shall be referred to the Grievance Committee (see Rosenman Colin Freund Lewis & Cohen vEdelman, 165 AD2d 533 [1st Dept 1991]; Principe v Assay Partners, 154 Misc2d 702 [Sup Ct, NY County

1992]). ~~ ~

Dated: February 23, 2011--H-O-~ .-J-O-S-EP-H-C-.-PA-ST-O-RE-S-S-A---

FINAL DISPOSITION X NON-FINAL DISPOSITION

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TO: LEWIS JOHS AVALLONE AVILES, LLPAttorney for Defendant Queens Long IslandMedical Group425 Broad Hollow RoadMelville, New York 11747-4712

AARONSON, RAPPAPORT, FEINSTEIN, et al.Attorney for Defendants Phillips, Miller, Daneels& Kalish757 Third AvenueNew York, New York 10017

YOELI & GOTTLIEB, LLPAttorney for Defendant Goldstein260 Madison Avenue, 18th FloorNew York, New York 10016

ERIC SCHNEIDERMANNew York State Attorney GeneralAttorney for Defendants Ahmad & Hussain120 Broadway, 23rd FloorNew York, New York 10271

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